464 F.2d 607
Dorothy EAGLE, Plaintiff-Appellee,
LOUISIANA AND SOUTHERN LIFE INSURANCE COMPANY, a
corporation, and Multiple Business Insurance
United States Court of Appeals,
Aug. 7, 1972.
Maurice Sanchez, Albuquerque, N. M. (Krehbiel & Alsup, Clayton, N. M., and Grantham, Spann, Sanchez & Rager, Albuquerque, N. M., on the brief), for plaintiff-appellee.
Bruce D. Hall, Albuquerque, N. M. (Rodey, Dickason, Sloan, Akin & Robb and Robert M. St. John, Albuquerque, N. M., on the brief), for defendants-appellants.
Before BREITENSTEIN, BARRETT, and DOYLE, Circuit Judges.
BREITENSTEIN, Circuit Judge.
In this removed action with jurisdiction dependent on diversity, plaintiff-appellee sued to recover on a group life insurance policy for the death of her husband. The trial court granted summary judgment in her favor and defendants have appealed.
Defendant-appellant Multiple Business Insurance Trust is an Alabama trust which provides group life insurance to employees of participating employers. Defendant-appellant Louisiana and Southern Life Insurance Company, a Louisiana company authorized to do business in New Mexico, issued to Trust a policy to provide group coverage for participating employers. Trust is the policyholder and employees of a participating employer are the beneficiaries under the trust agreement.
The complaint alleges that Reeves and Dougherty, who were affiliated with Insurance Consultants, Inc., were defendants' agents, "duly authorized to negotiate for insurance coverage * * * on behalf of Defendants as insurers." On May 22, 1970, Reeves and Dougherty met with representatives of Arkansas Valley Feed Yard, Inc., in Clayton, New Mexico, and solicited group life coverage for Arkansas Valley employees. Arkansas Valley executed an election to participate in the trust agreement for all of its employees and to pay all of the costs. The election stated the effective date to be June 1, 1970. Arkansas Valley gave to the solicitors its check for $663.02 to cover the initial costs.
On June 3, plaintiff's decedent was accidentally killed while engaged in his employment with Arkansas Valley. If coverage existed for Arkansas Valley, eligibility of the decedent for protection is not questioned. Insurance Company was notified of the death by a June 5 letter. On June 26 Insurance Company disapproved coverage and has refused to pay the death claim.
Both sides moved for summary judgment. The court granted plaintiff's motion and denied that of defendants. In so doing it made no statement of the facts which it deemed pertinent and gave no reasons for the actions taken.
Group life insurance is authorized in New Mexico. See N.M.S.A., 1953, Sec. 58-8-17. The trust agreement provides that an employer "whose request to participate has been accepted by the Trustees will become a party to this Agreement," provided certain conditions, not here pertinent, are satisfied. The group policy provides that full-time employees are "eligible for insurance on the Date of the Issue of the Policy or on the date his Employer Unit is accepted by the Policyholder [Trust] for insurance under the Policy." Employer Unit is defined to be "any employer who has made written election to participate in the Multiple Business Insurance Trust and whose election has been approved by the Policyholder and the Company [the insurer]." Arkansas Valley's election to participate states: "We understand that no insurance will become effective without the approval of the Insurance Company."
Plaintiff says that she is entitled to summary judgment because Arkansas Valley became a member of Trust when it elected to participate and that nothing further remained to be done. This depends on the authority of Reeves, Dougherty, and Insurance Consultants. Plaintiff affirms, and defendants deny, authority to bind defendants. Thus, we have a genuine controversy over a material fact. She also says that coverage was accepted by Insurance Company. She relies on a May 27 phone call from Dougherty to King, the regional manager of Insurance Company. Dougherty in his affidavit said that King "approved the election or application." In a counter-affidavit, King denied approval of coverage. Here again we have a factual dispute. On the record presented we are unable to say whether this dispute relates to a material issue.
Summary judgment is not proper when there is a genuine issue as to a material fact. Rule 56(c), F.R.Civ.P., and Fischer Construction Company v. Fireman's Fund Insurance Company, 10 Cir., 420 F.2d 271, 275. Presentation of cross-motions for summary judgment does not concede the absence of a material issue of fact. Nafco Oil and Gas, Inc. v. Appleman, 10 Cir., 380 F.2d 323, 325. Affidavits are no substitute for a trial. Hanley v. Chrysler Motors Corporation, 10 Cir., 433 F.2d 708, 711. Summary judgment is not proper when an issue turns on credibility. Hunt v. Pick, 10 Cir., 240 F.2d 782, 784. We are convinced that the record shows a genuine controversy over a material fact, policy coverage, and precludes summary judgment for plaintiff.
Defendants insist that the terms of the trust agreement, the group policy, and the election to participate entitle them to summary judgment. They recognize the procedural complications arising from the appealability of the denial of their summary judgment motion, but say that the outcome is "controlled by unchallenged documentary evidence." See Killpack v. National Old Line Insurance Company, 10 Cir., 229 F.2d 851, 853. We decline to explore this phase of the case. In our opinion this is not a proper case for summary judgment. The rights of the parties should be determined after a full-fledged trial of the merits.